1319571 (Migration)

[2015] AATA 3030

1319571 (Migration) [2015] AATA 3030 (8 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rui Meng

CASE NUMBER:  1319571

DIBP REFERENCE(S):  CLF2013/198256

MEMBER:Tim Connellan

DATE:8 July 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 08 July 2015 at 3:23pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 17 August 2013. The delegate decided to refuse to grant the visa on 5 December 2013. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. On 5 December 2013 the delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.573.235 of Schedule 2 to the Regulations because having been reported for unsatisfactory course progress by RMIT University, her education provider she had breached condition 8202 of her student visa and therefore failed to satisfy cl.573.235 which required a visa holder to comply substantially with visa conditions.

4. On 19 December 2013 the Tribunal received an application to review the delegate’s decision.

5. On 18 September 2014, the Tribunal wrote to the applicant, via her migration agent inviting her to a hearing scheduled for 21 October 2014 to give evidence and present arguments relating to the issues in her case.

6. The requirement to satisfy cl.573.235 was repealed from 22 March 2014. The de-novo review of the application considered whether she was eligible for the grant of a student visa.

7. The hearing invitation stated in part: The tribunal will assess whether you intend genuinely to stay in Australia temporarily as required by clause 573.223(1)(a) of the Migration Regulations. Relevant to this requirement is a direction from the Minister known as Direction No 53. A copy of which is attached.

   Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to Direction No 53.

8. A range of other evidence was requested including

   ·     a copy of current Certificate of Enrolment,and

   ·      Evidence of past studies in Australia

9. and the letter continued: The tribunal requests that the written statement and other evidence are provided to the Tribunal at least 7 days before the hearing date.

10. On 20 October 2014, the eve of the hearing, the Tribunal received a fax submission from the agent which provided a background to the applicant’s history in Australia but did not address the issues in Direction No53. It contained Academic Transcripts and a Diploma of Business certificate however no Confirmation of Enrolment in a current course was provided.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    The Hearing

12. The applicant appeared before the Tribunal on 21 October 2014 to give evidence and present arguments.

13. The applicant was represented in relation to the review by her registered migration agent who attended the hearing.

14. The Tribunal referred to the primary decision, a copy of which she provided with the review application noting that her application was refused because RMIT, her education provider had reported her for unsatisfactory course progress and issued a Section 20 notice and the delegate found this created a breach of condition 8202 of her student visa.

15. The Tribunal discussed the fact that student visas are provided to enable international students to study and gain skills. They come with an expectation that students will regularly attend classes and make satisfactory academic progress.

16. In her first 2 semesters at RMIT she failed to pass any subjects, which is why the section 20 notice was issued. And the delegate found that in breaching condition 8202, she had failed to comply substantially with conditions of her visa.

17. The Tribunal explained that the law had changed since her decision was made however, it is the role of the tribunal to conduct a de novo hearing and consider whether she meets the requirements for the grant of a student visa.

18. The Tribunal referred to the hearing invitation letter and the intention to assess whether she intends genuinely to stay in Australia temporarily as required by clause 573.223(1)(a) of the migration regulations. The Tribunal referred to the request to provide a written statement addressing the issue of whether she was a genuine temporary entrant by reference to Direction No. 53 a copy of which was provided with the application.

19. The agent said he had not provided such a written statement.

20. The tribunal asked the applicant why she believed she should be granted a visa. She provided no coherent answer.

21. The tribunal asked what had happened in her early days of study when she had not passed any subjects in 2 semesters. She said she had difficulty understanding English. She told the tribunal she had spoken to her teachers who weren’t of any help saying that they had given her the information in the lectures.

22. When asked whether she had considered doing further studies in English she responded that she had not as she had a number of apps on her mobile phone about IELTS.

23. She said she had not sought counselling at RMIT.

24. The applicant confirmed she first came to Australia on October 2009 to study Building and Construction at RMIT after 10 weeks of an English language studies.

25. She was enrolled in a Diploma of Building Design and Technology to run from February 2010 to December 2011. She ceased studying the Diploma after 2 semesters in which she failed to pass any units, achieving scores of 0%, 7%,12%,25%,31% and 35% and 2 units in which she did not submit assignments or sit exams (marked DNS).

26. In February 2011 she commenced an Advanced Diploma of Building Design. She told the tribunal that the RMIT ceased offering the Diploma course.

27. She told the hearing and confirmed she studied the Advanced Diploma until March 2012. The tribunal asked if this was so, why in a written statement she said she had withdrawn from the Advanced Diploma towards the end of the 2^nd semester 2011. After a prolonged pause her response was that it was confusing.

28. The tribunal told the applicant it was seeking to establish whether she was a genuine student and when someone provided conflicting evidence it was likely to cast doubts about their credibility. Her claim dates of study conflicted not only with her previous evidence but with her movement records.

29. She said she returned to China in June 2012 and when she came back to Australia in July 2012 RMI T University excluded her from further studies due to lack of academic progress.

30. She therefore decided to quit and to change education providers to the University of Ballarat and study business.

31. She said that she had been ill and saw a Doctor in China which she said was in July 2012. The tribunal repeated its concerns about the accuracy of dates, noting that the medical evidence provided was dated 30 January 2012. The medical certificate said ‘the patient is required to take 2 months off for anti-inflammatory treatments’. The applicant said she did not take the anti-inflammatory treatments, and did not take 2 months off, but rather spent a month at home. She said she did not want to speak to anybody including the doctor. The tribunal noted she had returned to Australia on 26 February 2012 less than a month after the consultation with the doctor.

32. She successfully completed a Diploma of Business at Australian Technical and Management College between July 2012 and March 2013.

33. She said she lived with friends in Clayton and attended university at the city campus.

34. When asked the purpose of her studies she said she was going to work in her father’s company as he would retire someday and she would own the business.

35. She said her only relatives in China were her parents.

36. The tribunal noted that in 6 years in Australia her only completed courses were two relatively brief ELICOS courses and a Diploma of Business which it did not believe it was a satisfactory academic record.

37. The applicant was unaware of how long summer school lasted and when asked what subjects she would study in summer school, she responded it depended on which subjects the University provided.

38. The tribunal told the applicant it was concerned she was not a genuine student as she did not appear to have a commitment to her studies.

39. She told the hearing she was keen to finish her course so she could return home and marry her boyfriend.

40. The agent said he had nothing further to add.

    CONSIDERATION OF CLAIMS AND EVIDENCE

41. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 573.

42. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)    the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)     …

43. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

44. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

45. Having been in Australia for more than five years, Ms. Meng’s only successfully completed studies are two relatively brief ELICOS courses and an 8-month Diploma of Business. The Tribunal finds this is not the academic record of a genuine student.

46. Ms Meng’s claimed to have come to Australia to study Architecture but changed to Business when she was unable to cope with Architecture studies at university. She claimed to be studying business so she could run her father’s business which would pass to her when he retired. She told the hearing she believed she was the best person to run the business. Her evidence indicated little understanding of what was required to obtain a degree and while she referred to completing the course in summer school, she did not know how long it would take or what subjects were provided.

47. The Tribunal does not believe she has a defined study plan providing her with commercial value or leading to any clearly considered future

48. The Tribunal has had regard to the issues in Direction No.53 and having considered Ms Meng’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied she intends genuinely to stay in Australia temporarily. Accordingly, Ms Meng does not meet cl.573.223(1)(a).

49. The Tribunal has found Ms Meng does not meet an essential requirement of cl.573.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an

    identical requirement. For reasons given above, the Tribunal also finds that Ms Meng does
    not meet the requirements of these subclasses. In respect of Subclass 580 (Student
    Guardian) visa, there is no material before the Tribunal that suggests Ms Meng meets the
    prescribed criteria for that subclass. As the Tribunal has found that Ms Meng does not meet
    a criterion for the grant of a student visa, it must affirm the decision under review.

    Decision

50. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (ClassTU) visa.

    Tim Connellan
    Member